Modifying Support

We live in economically tumultuous times. Banks are failing, homes are being lost to foreclosure and people are losing their jobs. As a result of these financial reverses, the incomes of many people who have been ordered to pay child or spousal support or who are recipients of support payments are going down. This raises the question of what those people should do.

Child and Spousal Support Laws

Under the California Family Code a parent can be ordered to pay child support to the other parent. In addition, a spouse can be ordered to pay spousal support (alimony) to the other spouse. Child support orders remain in effect until the child turns eighteen. However, if the child is still attending high school, the child support obligation continues until that child graduates high school or turns nineteen years old, which ever happens first. Child support orders can also be modified by the Court for specified reasons, which are discussed below.

Spousal support orders, on the other hand, remain in effect until the spouse who is receiving spousal support remarries, dies or the Court's modification of the existing order. On occasion, the spousal support order provides that the amount and or the duration of the spousal support payments will either be reduced or end on a specific date.

In general, child support and spousal support orders continue in effect unless they are modified by the Court or by operation of law. If either party to the case wants the support payments to either be decreased or increased, an "Order to Show Cause" must be filed with the Court. The key point to remember here is that a person who cannot afford to pay the current support order must go back to court to ask for a modification.

Basis for Modification of Support Orders

In general, a child or spousal support order can be modified only if there is a showing of a "change in circumstances" since the last order was made. Where there is a request to reduce the support payments, the person making the payments will have to show that his/her income is substantially lower or that the other party's income is higher than it was when the current support order was made.

In a limited number of cases, it is possible for a parent who is receiving child support to obtain an increase in the amount that is paid without having to show a change in circumstances. This is possible if the amount of the current child support is below the Statewide Guideline for Child Support. In that regard, the Family Code says that a parent who is receiving less than the guideline amount of child support can always return to court to ask that the amount of child support be brought up to the guideline level. However, the converse of this situation is not true; in other words, a parent who is paying more than the guideline level of child support cannot automatically go back to court to ask that the payments be reduced. This because one of the purposes of the Statewide Guideline for Child Support is to insure that there be a minimum amount of child support that is available to a custodial parent, regardless of where in the state the case is handled.

Consequences of Paying Less than the Court Order

Stories about "deadbeat dads" who owe tens of thousands of dollars on back due child support or spousal support payments regularly appear in the media. The fact is that a substantial portion of those parents (there are also "deadbeat moms") have suffered financial reverses that, in turn, prevent them from paying the full amount of their court-ordered support. These misguided parents get behind in their support payments because they do not think of going back to court to have their support order reduced.

This illustrates how important it is for the parent who is paying child support or the ex spouse who is paying spousal support to request a modification as soon as the financial crisis hits. Doing nothing about it does not change the fact that the support is owed. Moreover, the law also says that the person who has built up a support arrearage also has to pay simple interest of 10% per year on the arrearages. For example, if a parent owes $10,000 in past-due support, interest of $1,000 is added to that amount every year until it is paid. So, after five years, the new principle amount that must be paid is $15,000.

Recommendations

If you are paying child or spousal support:

  • File for a modification of the support order immediately if your income has been reduced.
  • If you cannot pay the entire amount of support, be sure to pay something, even if it is a small amount.
  • Do not rely on the agreement of the support recipient that you do not have to pay the support; it does not change the fact that there is a support order.
  • Do not pay any support with cash.

If you are receiving support.

  • Keep records of all support payments received.
  • Do not tell the other party that they do not have to pay all of the support that is owed.
  • File a request for modification if your income is reduced or if the other party's income has increased.